Julian F. v. State, 030619 AKSC, S-17060

Docket Nº:S-17060
Party Name:JULIAN F., Appellant, v. STATE OF ALASKA, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.
Attorney:Callie Patton Kim, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant. Anna Jay, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee.
Judge Panel:Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
Case Date:March 06, 2019
Court:Supreme Court of Alaska
 
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JULIAN F., Appellant,

v.

STATE OF ALASKA, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.

No. S-17060

Supreme Court of Alaska

March 6, 2019

Memorandum decisions of this court do not create legal precedent. A party wishing to cite such a decision in a brief or at oral argument should review Alaska Appellate Rule 214(d).

Appeal from the Superior Court No. 3AN-16-00453/ 00454 CN of the State of Alaska, Third Judicial District, Anchorage, Gregory Miller, Judge.

Callie Patton Kim, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant.

Anna Jay, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee.

Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.

MEMORANDUM OPINION AND JUDGMENT [*]

I. INTRODUCTION

A father appeals the termination of his parental rights with respect to his two children, who are Indian children.1 He first argues that the superior court violated ICWA by finding that the Office of Children's Services (OCS) made active efforts to reunify his family.2 Second, he argues that the record does not support the superior court's finding beyond a reasonable doubt that returning the children to him was likely to result in serious physical or emotional damage to them.3 Because we conclude that the superior court's findings are supported by the record and meet ICWA's requirements, we affirm its order terminating the father's parental rights.

II. FACTS AND PROCEEDINGS

Julian F. and Allison C. are the parents of five-year-old Bethany and four-year-old Cassidy.4 Both children are Indian children within the meaning of ICWA.5

In August 2016 the children were living with Allison; Julian was incarcerated. In mid-August OCS filed a non-emergency petition to adjudicate the children as in need of aid and remove them from Allison's custody based on a report that she was under the influence of drugs while caring for them.6 Following an initial probable cause hearing that same month, which Julian attended by telephone from the correctional center7 and Allison did not attend, OCS removed the children from Allison's home and placed them with their maternal great-grandmother.

Julian remained in jail and then in a halfway house until March 2017. He participated by telephone in hearings held during this time, including a temporary custody hearing in September 2016, a conference in October at which he stipulated to adjudication of the children as in need of aid, and a disposition hearing in January 2017.8Julian testified at the disposition hearing that he had participated in substance abuse counseling, parenting classes, and vocational training programs available to him in jail. The court's disposition order found that the children continued to be in need of aid and that OCS was making active efforts to prevent family breakup by arranging visitation, drafting case plans, and encouraging Julian's participation in the Department of Corrections' (DOC) programs.

When Julian was released on parole in March 2017, his case plan required him to "[f]ollowup with aftercare" for substance abuse, complete drug testing, and apply for housing. But he did not contact the OCS case worker, pick up a housing application, or follow up with substance abuse aftercare for several months. He did initially visit the children regularly at their great-grandmother's house, but stopped doing so in May 2017. He later resumed visiting through OCS, but "he was taken off the calendar because he had three no-shows in a row." In July 2017 he failed to report for a required meeting with his parole officer, and he was arrested in August on an outstanding parole warrant.

Neither Julian nor Allison attended a permanency hearing held in July 2017.9 Julian's attorney reported having had no contact with him for about six months. In its report to the court, OCS stated that its "attempts to locate and work with [him]" were of "no avail." The superior court found that OCS had made active efforts to provide services to the family, which included: referring the parents for substance abuse assessments, treatment, and random drug testing; facilitating participation in parenting classes and visitation; and developing and updating case plans. The court found that OCS's efforts had been unsuccessful. In October 2017 OCS petitioned to terminate both parents' parental rights.

Julian eventually re-established contact with the OCS case worker in late 2017. He admitted that he had relapsed on methamphetamine, and the case worker referred him for random urinalysis (UA) testing. His contact with OCS over the following months was inconsistent, and he failed to keep all but one of his UA appointments. Neither he nor Allison attended a trial setting conference in November.

A termination trial was set for March 2018. A few weeks prior to trial, Julian told the case worker that he had started a treatment program to address his drug addiction and planned to enroll in trade school. But he did not provide documentation of treatment, and by the time of trial he had yet to start school.

Neither parent attended the termination trial. The court denied their attorneys' requests for a continuance. An OCS case worker and the children's great- grandmother both testified to Julian's inconsistent contact and sporadic family visits. OCS also presented testimony from a licensed social worker with expertise in working with Alaska Native families.10 The expert opined that because of Julian's history of sporadic engagement with OCS and service providers, primarily due to his frequent incarceration and his absconding from parole supervision, it was too soon to know whether the treatment program would allow him to overcome his substance abuse.

The court ordered the termination of Julian's and Allison's parental rights in late March 2018. The court found clear and convincing evidence that the children were in need of aid due to parental neglect and substance use that substantially impaired Julian's and Allison's ability to parent the children.11 The court also found clear and convincing evidence that the parents had failed to remedy these problems within a reasonable time[12] and that OCS had made "active and reasonable efforts ... to provide remedial services and rehabilitative programs" to facilitate reunification.13 Relying on the expert's testimony, the court found beyond a reasonable doubt that continued custody by either parent was likely to result in serious emotional or physical damage to the children.14 The court also found by a preponderance of the evidence that terminating parental rights was in the children's best interests.15

Julian appeals. Allison does not appeal the termination of her parental rights.

III.

STANDARD OF REVIEW

In ICWA cases we review a superior court's findings of fact, including findings underlying a determination that returning the children to the parent would likely harm them, for clear error.16 Factual findings are clearly erroneous if, upon review of the entire record, we are left with "a definite and firm conviction that a mistake has been made."17 "[W]hether a superior court's findings satisfy the requirements of the CINA and ICWA statutes and rules" is a question of law that we review de novo.18 "Whether OCS made active efforts as required by ICWA is a mixed question of law and fact."19

IV.

DISCUSSION

A trial court's decision to terminate parental rights to an Indian child is governed by both state and federal statutes and rules.20 Under Alaska law, a court may not terminate parental rights unless it finds by clear and convincing evidence that: (1) the child is "in need of aid" as a result of conduct or conditions described in AS 47.10.011;21 (2) the parent has either not remedied the conditions that present a substantial risk of harm to the child or has not made sufficient progress in remedying them;22 and (3) OCS made reasonable efforts under AS 47.10.086 to provide services aimed at reunifying the family.23 The court must also find by a preponderance of the evidence that termination of parental rights is in the best interests of the child.[24]

ICWA imposes additional requirements under federal law. It requires that OCS make "active efforts ... to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family" and that OCS show that these efforts were unsuccessful before a court can order termination of parental rights to an Indian child.25 The court must also find, beyond a reasonable doubt and based on evidence that includes qualified expert testimony, that returning the child to the parent will likely "result in serious emotional or physical damage to the child."26

Julian...

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